Confessions of an Aca-Fan

University of Chicago law professor Randy Picker was nice enough to pass along a link to what he has written - from a legal perspective - about the potential threat which the RIAA may pose to those folks who want to post lip-sync or karaoke songvids on YouTube:

For the music industry, this is a not-so-golden oldie and the conflict illustrates the persistent gap between actual law and the public's knowledge of that law and, frequently, perceptions of fairness. On these facts, far from being crazy or somehow a misuse of copyright, I think that music copyright holders have a straight-forward action against YouTube.... this is how we pay for music in the real world: different uses, different prices, and until we change the law and come up with a better way to pay for music, you should assume that the music industry is going to show up one day and knock on YouTube's door.

I don't pretend to be a lawyer so my views on the law should be taken with a grain of salt. I am pretty sure though that Picker is correct that the RIAA is almost certainly well within its legal rights to take action to shut down this use of its music via YouTube.

That said, I feel that we should be paying closer attention to that "persistent gap between actual law and the public's knowledge of that law and frequently, perceptions of fairness." True, ignorance of the law is no excuse but a democratic state should always be concerned if the gap between the law and the public's perception of fairness grows too great. (And I would suggest that gap is growing hourly at the present moment).

The current law regarding media use was written at a time when the freedom of the press was exercised primarily by those who could afford to own presses and was updated at a time when the key stakeholders at the table were thought to be broadcasters and other large media interests. It was never intended to function in a world where an ever-expanding number of amateur media makers are producing and circulating their work to a public. I would argue that our current law recognizes the rights of professionals fairly well - though clearly even here, it is having trouble keeping up during a moment of media in transition. As an academic, I know how much of a written text I can quote within scholarly commentary and fall within a Fair Use defense; I also have a pretty good sense as a journalist what constitutes legitimate quotation. Yet, as we turn to fans and bloggers and others within this expanding participatory culture, the lines become much less clear.

It is pretty clear that whatever systems of clearance that got set up to deal with commercial musicians and radio stations or even, to use Picker's example, singing waiters is not going to be adequate to deal with those high school guys in China who appeared in one of the more famous example of lip syncing videos. For one thing, the pricing for public performances is almost certainly beyond their capacity to pay and so they are going to be permanently locked out of being able to respond to a central element of their cultural environment. For another, it's hard to imagine a system which could accommodate requests every time one of us wanted to pre-register to perform "Happy Birthday", say, for our 5 year old's birthday party - as I am sure that the law clearly states we should do. Again, we are producing media on a scale rather different from even what was imagined in the most recent revisions of the copyright act. And for a third, did I mention those guys were from China and operate under a totally different copyright regime?

That's where we get to the second stage of this problem: a system of distribution like YouTube pushes grassroots creative expression to a level of visibility well beyond that received by any previous form of folk culture. The media industries could tolerate us lip syncing their songs at the local Lions Club meeting or as part of the school talent show because it did not reach a large enough public to demand their attention and concern. Enforcement would have been difficult and the damages caused by those public performances would have been so minimal that nobody would have taken the time to go after them. True, school drama clubs used to pay some small amount in licensing fees to the rights holders of plays like Harvey and Guys and Dolls, but there were many many everyday performances, even public performances, which would have been off the radar of the commercial rights holders.

But the same performance posted to YouTube can be seen by millions of people and in some well publicized cases, has led to commercial performances on television, even contracts for use in television advertising. The reach of YouTube breaks down the line between professional and amateur performance in a way which is going to force the recording industry to respond.

And that's the paradox of the present moment: you have amateurs reaching mass audiences without the means (or the legal representation) held by the media companies which previously were the only ones who could reach this scale of public.

It's not sufficient to simply tell us "this is the law." We need to work together to try to change the law into something that makes sense in relation to this emerging and expanding participatory culture.

That said, my key point in the original post was not that the RIAA would be exceeding its legal rights in going after such videos. Picker is correct to suggest that this would be a logical and clear cut extension of long-standing legal practice. Rather, my point was that attacking these amateurs would be going against the recording industry's own public and economic interests. Here I am thinking about a statement which the anthropologist and industry consultant Grant McCracken makes in his book, Plentitude:

Corporations will allow the public to participate in the construction and representation of its creations or they will, eventually, compromise the commercial value of their properties. The new consumer will help create value or they will refuse it....Corporations have a right to keep copyright but they have an interest in releasing it. The economics of scarcity may dictate the first. The economics of plentitude dictate the second.

Right now, the recording industry, more than any other entertainment sector, wants to fall back on an assertion of its legal claims over intellectual property -- trying to throw every legal and technological obstacle it can toss into the path of change. In doing so, they simply further erode public support and respect for their industry. They probably have the legal rights to do it: I wish they had the economic and cultural sense not to do so.

Thanks, Randy, for a very interesting post. I don't mean to be picking on what you wrote. I essentially agree with you on the legal argument but I hate to leave the entire future of our culture in the hands of lawyers (no personal insult intended). We have to fight a two front battle here: help to rewrite copyright law to respect the new realities of the media landscape and help to convince media companies that it is in their best interest to build a more collaborative relationship with their consumers.